SCWC IN THE SUPREME COURT OF HAWAI'I ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) PETITIONERS/PLAINTIFFS-APPELLANTS' PETITION FOR WRIT OF CERTIORARI

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1 Electronically Filed Supreme Court SCWC JAN :16 AM SCWC GREEN PARTY OF HAWAII, KAREN M. HOLT, ELIZABETH M. RUZE, MICHAEL KRATZKE, MOANI KEALA AKAKA, KIM DUFFETT, MARY JO DENNISON and MAKA'ALA KA'AUMOANA vs. Plaintiffs/Appellants IN THE SUPREME COURT OF HAWAI'I SCOTT NAGO, Chief Elections Office, State of ) Hawai'i, and STATE OF HAWAII, ) ) Defendants/Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No (2) (Declaratory Action and Injunction) APPEAL FROM FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER, (1) GRANTING DEFENDANTS SCOTT NAGO, CHIEF ELECTION OFFICER, AND THE STATE OF HAWAII'S MOTION FOR SUMMARY JUDGMENT AND (2) DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; FILED SEPTEMBER 26, 2014 AND THE FINAL JUDGMENT ENTERED OCTOBER 24, 2014 CIRCUIT COURT OF THE SECOND CIRCUIT, STATE OF HAWAI'I The Honorable Peter T. Cahill, Judge PETITIONERS/PLAINTIFFS-APPELLANTS' PETITION FOR WRIT OF CERTIORARI APPENDICES A-C CERTIFICATE OF SERVICE

2 LAW OFFICE OF LANCE D COLLINS LANCE D. COLLINS 8246 Post Office Box Honolulu HI Telephone: (808) Attorney for Petitioners-Appellants GREEN PARTY OF HAWAII, KAREN M. HOLT, ELIZABETH M. RUZE, MICHAEL KRATZKE, MOANI KEALA AKAKA, KIM DUFFETT, MARY JO DENNISON and MAKA'ALA KA'AUMOANA ROBYN B. CHUN, ESQ. PATRICIA OHARA, ESQ. Deputy Attorneys General KIMBERLY TSUMOTO GUIDRY, ESQ. First Deputy Solicitor General DOUGLAS CHIN, ESQ. Attorney General of Hawai'i Department of the Attorney General 425 Queen Street Honolulu, HI Attorneys for Defendants-Appellees SCOTT NAGO and the STATE OF HAWAII

3 SUBJECT INDEX SUBJECT INDEX TABLE OF AUTHORITIES i ii I. Questions presented for certiorari 1 II. Prior Proceedings 2 III. State of the Case 3 IV. Brief Argument and Authorities 4 A. The ICA applied the wrong standard to Appellants rulemaking claims 4 concerning ballot shortages B. The ICA gravely erred by too narrowly construing the scope of ballot 5 order methods sought by Appellants to be subjected to rulemaking procedures pursuant to HRS 91-3 procedures. C. Disposition of improper ballots affected the public s rights and procedures 7 and were not exempt from rulemaking as matters of internal management D. The ICA incorrectly interpreted and gravely erred in applying its 9 interpretation of Pilaʻa to this case 1. Complexity of 2012 ballot order methods did not exempt them from 10 rulemaking requirements. 2. The Office of Elections was experienced in ballot management during 11 elections, in accord with Pilaʻ a E. Appellants were not required to petition for agency rulemaking in order 11 to raise their HRS 91-7 claims

4 Hawai'i Cases TABLE OF AUTHORITIES Aguiar v. Hawaii Housing Auth., 55 Haw. 478, 522 P.2d 1255 (1974) 10, 11 Babson v. Nago, No. CAAP (Sep. 17, 2014) (mem.) 11, 12 Doe v. Chang, 58 Haw. 94, 564 P.2d 1271 (1977) 7, 8 Foytik v. Chandler, 88 Haw. 307, 966 P.2d 619 (1998) 6 Hawaii Prince Hotel Waikiki Corp. v. City & Cnty. of Honolulu, 89 Haw. 381, 9, P.2d 21 (1999) In re Water Use Permit Applications, 94 Haw. 97, 169 P.3d 409 (2000) 10 Makaʻ āinana v. Hawaiian Homes Comm'n, No. CAAP (Dec. 22, 2015) 8 Mortensen v. Bd. of Trustees, 52 Haw. 212, 473 P.2d 866 (1970) 11 Pilaʻa 400, LLC v. BLNR, 132 Haw. 247, 320 P.3d 912 (2014) Richardson v. City & County of Honolulu, 76 Haw. 46, 868 P.2d 1193 (1994) 8 passim Rose v. Oba, 68 Haw. 422, 717 P.2d 1029 (1986) 7, 8, 10 State v. Claunch, 111 Haw. 59, 137 P.3d 373 (App. 2006) 7, 8 State v. Fedak, 9 Haw. App. 98, 825 P.2d 1068 (1992) 8 Watland v. Lingle, 104 Haw. 128, 85 P.3d 1079 (2004) 4 Other Cases Burdick v. Takushi, 504 U.S. 428 (1992) 7, 8 NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969) 10 Ranchers Cattlemen Action v. U.S. Dept. of Agr., 499 F.3d 1108 (9th Cir. 2007) 5 SEC v. Chenery Corp., 332 U.S. 194 (1947) 9 Sky Ad, Inc. v. McClure, 951 F.2d 1146 (9th Cir. 1991) 5 Constitutions and Statutes Chapter 11, HRS 7 HRS HRS , 7, 8 HRS Chapter 91, HRS 1, 8, 12 HRS , 7, 9

5 HRS 91-3 passim HRS , HRS 91-7 passim HRS Rules Title 3, Chapter 172, HAR 7 HAR , 11 HAR HAR HAR Title 13, chapter 1, HAR 9

6 PETITIONERS/PLAINTIFFS-APPELLANTS' PETITION FOR WRIT OF CERTIORARI Plaintiff-Appellants/ Appellants Green Party of Hawaiʻi ( Green Party ), Karen M. Holt, Elizabeth M. Ruze, Michael Kratzki, Moani Keala Akaka, Kim Duffett, Mary Jo Dennison, and Makaʻala Kaʻaumoana (collectively, Appellants ), by and through their undersigned counsel, pray a writ of certiorari issue to review grave errors manifest in the Hawaiʻi Intermediate Court of Appeals (ICA) decision in Green Party Hawaiʻi v. Nago, No. CAAP (Haw. App. Dec. 18, 2015) ( ICA Op., attached as Appendix A ). This application for a writ of certiorari is submitted pursuant to Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 40.1 and HRS 602-5(a)(1) and I. Questions presented for certiorari: According to the ICA: (1) the ballot order method was not a rule because nothing in the record indicated it was ever intended to or would ever be used again in the future (ICA Op. at 18); (2) ballot shortage procedures merely affects in an indirect way the public's interest in having reasonably prompt access to paper ballots on which to cast their vote (Id. at 22); and (3) procedures for counting wrong ballots fell within the scope of the internal management exception. Id. at 23. Questions presented for certiorari concern whether the ICA gravely erred: (1) By applying a standard in an election contest for overturning an election result to Appellants claim of deprivation of voting rights, and holding such claims were immaterial because it would not have affected the outcome of the election in regard to ballot shortage procedures; (2) By holding the ballot order method was an ad hoc, unforeseeable, one-time occurrences that would not affect future public rights or procedures; (3) By holding other improper handling of ballots were matters of the Office of Elections internal management and therefore exempt from rulemaking requirements; (4) By misinterpreting this Court s opinion in Pilaʻa 400, LLC v. Board of Land & Natural Resources, 132 Haw. 247, 320 P.3d 912 (2014) to mean ballot management methods developed outside of contested case proceedings, so how escaped rulemaking requirements under HRS chapter 91; and, (5) By finding Appellants failed to cite to the record showing the circuit court determined the obligation of the agency was mitigated or relieved by failure to apply to the agency to engage in rulemaking procedures pursuant to HRS

7 II. Prior Proceedings: By letter dated November 20, 2012, Defendant-Appellee Scott T. Nago, State Chief Elections Officer (Nago) wrote to the Elections Commission on the status of the 2012 General Election. Record on Appeal (ROA) at Nago held his position since ROA at 39.Nago wrote: The initial lack of a sufficient inventory of ballots at various polling places across the state was the result of a deficient model used for ordering ballots, a failure to follow the safeguards that exist to modify the order or to reallocate existing ballots prior to election day, and a failure to deploy additional ballots in a timely manner on election day. [.... ] In the end, we received approximately 70 calls from 51 polling places about their ballot inventory, and 24 of them actually ran out of paper ballots before our delivery of ballots to them. Significant delays were experienced at various polling places given that the direct recording electronic voting machine could be used by only one voter at a time, compared to paper ballots which can be quickly issued to voters, who can then go to separate voting booths to fill them out, and then have them read by the standard precinct counter for paper ballots. ROA at 308, 311. On December 7, 2012, Appellants filed their complaint against Nago, and the State of Hawaiʻi (collectively, Defendants) alleging unlawful rulemaking and seeking injunctive relief, with the circuit court. 2 ROA at On July 22, 2013, Defendants filed a motion for summary judgment and on August 23, 2013, the circuit court held a hearing on Defendants motion. ROA at 30; Tr. 16 (Aug. 23, 2013). On September 5, 2013, the circuit court filed its order denying Defendants motion for summary judgment. ROA at 88. On February 13, 2014, Appellants filed a motion for summary judgment, to which was attached responses to their request for answers to interrogatories. ROA at 131, 152. Response to Interrogatory No. 1 stated in relevant part: Former Office of Elections Ballot Operations Section Head, Lori Tomczyk, determined the formula to use to calculate the number of ballots printed in the primary and general elections (ballot order) of Based upon her experience in preparing the ballot orders in prior elections, Ms. Tomczyk modified prior ballot order methodologies. The calculations were subject to further refinement up to and including Election Day, depending upon external circumstances, including, among other things, the number of absentee ballots case and feedback from the county clerks. ROA at 152. Defendants answers to Interrogatories Nos. 12 and 13 stated (ROA at ): In attempting to urgently deliver the reserve ballots to the polling places, the ballots for two polling places were inadvertently taken to the wrong polling places towards the end of the day. 1 The ROA is at ICA docket numbered 20; citations refer to pagination as seen in a PDF viewer. 2 The Honorable Peter T. Cahill presided. 2

8 Specifically, Hokulani Elementary School (District Precinct 20-04) and Waialae Elementary School (District Precinct 19-03) received each other s reserve ballots. A total of 46 ballots at Hokulani Elementary School and 11 Waialae Elementary School were cast on ballots printed for the other precinct... at Hokulani Elementary School and Waialae Elementary School, the ballots cast for the wrong precinct were rejected by the precinct counters... only the contests that the voters were eligible to vote in were counted by the Official Observers... On February 20, 2014, Appellants withdrew their motion for summary judgment without prejudice. ROA at 335. On June 27, 2014, Defendants filed a motion for summary judgment, which was stricken by the circuit court s order, filed on June 3, ROA at 681. On May 30, 2014, Appellants filed their motion for summary judgment. ROA at 477. On June 9, 2014, Defendants refiled a second motion for summary judgment. ROA at 683. On July 10, 2014, Appellants filed their opposition to Defendants motion for summary judgment. ROA at On July 18, 2014, the circuit court held a hearing on parties motions for summary judgment. Tr. 18, Jul. 18, On September 26, 2014, the circuit court filed its Findings of Fact, Conclusions of Law, and Order (FOFs/COLs/Order) granting the Defendants motion for summary judgment. ROA at Final judgment was entered on October 24, ROA at On November 21, 2014, Appellants filed their notice of appeal to the ICA. ROA at On December 18, 2015, the ICA filed their Opinion, affirming the circuit court s decision. On January 27, 2016, the ICA filed its Judgment on Appeal. III. Statement of the Case. The Chief Elections Officer adopts administrative rules to implement the Election Code. HRS 11-2(e) (am. 2003). Appellants sought administrative rulemaking on the Office s ballot ordering method, procedures for addressing ballot shortages, and the procedure for rectifying wrong ballots, which would include public participation opportunities, pursuant to HRS The 2012 General Election was the result of some horrific mistakes that the Office of Elections has admitted to. Tr. 18 (Jul. 18, 2014) at 23: 1-3. Ballot shortages occurred at precincts across the state. ROA at [A] total of 25 [precincts] said that they ran out of ballots before they received more ballots. ROA at 160. In some cases, ballots for the wrong district or precinct were delivered to precincts with shortages and used by voters. ROA Appellants include those who were: required to either vote on a minority-language ballot (which included questions) or wait for hours to use an electronic voting machine; provided with incorrect ballots and cast votes in elections to which they were not entitled to vote; and waited hours for replacement ballots. ROA at In light of these mistakes, Appellants sought judicial declarations that rulemaking processes apply to the Office of Elections ballot order method and procedures for rectifying ballot shortages and improperly cast ballots. ROA at 12. 3

9 IV. Brief Argument and Authorities. A. The ICA applied the wrong standard to Appellants rulemaking claims concerning ballot shortages. It is undisputed that mistakes were made... there was a mix up of the ballots sent to two locations; this resulted in 57 voters casting votes on incorrect ballots. ICA Op. at 2; see also ROA at Appellants, including those affected by these mistakes, sought rulemaking on the amount of ballots printed, ballot shortage procedures, and procedures to rectify voting on incorrect ballots. ROA at However, the circuit court concluded, and the ICA affirmed, the counting of votes on wrong ballots was to be remedied through election contest provisions and a complaint in such an action shall set forth the case or causes that could cause a difference in the election results and the reasons for reversing, correcting, or changing the decisions of the precinct or counting center officials in an election using an electronic voting system. ROA at 1042 (FOF No. 47). Under the standard for election contests, a complaint challenging the results of an election pursuant to HRS fails to state a claim unless: (1) the plaintiffs demonstrate errors that would not have affected change the outcome of the election;,... ; or (2) the plaintiffs demonstrate that the correct result cannot be ascertained because of a mistake or fraud on the part of the precinct officials [pursuant to HRS (b)]. Watland v. Lingle, 104 Haw. 128, 135, 85 P.3d 1079, 1086 (2004) ((citations omitted). The lower court applied the wrong standard. Appellants did not seek to reverse, correct, or change the decisions of the vote count or otherwise contest an election under HRS , but rather for Nago to prescribe rules concerning ballot shortages. ROA at The ICA gravely erred by also applying this standard; It appears, however, that:... none of the races that could have been impacted by the ballot mix-up were close enough to have been affected. ICA Op. at 2. This standard was also inapplicable because, as the circuit court recognized, Appellants were not required to demonstrate injury-in-fact to merit standing to bring their claim under HRS 91-7 (am. 2014). 3 ROA at 1044 (COL No. 58). 3 HRS 91-7, titled Declaratory judgment on validity of rules, provides: (a) Any interested person may obtain a judicial declaration as to the validity of an agency rule as provided in subsection (b) by bringing an action against the agency in the circuit court or, if applicable, the environmental court, of the county in which the petitioner resides or has its principal place of business. The action may be maintained whether or not the petitioner has first requested the agency to pass upon the validity of the rule in question. (b) The court shall declare the rule invalid if it finds that it violates constitutional or statutory provisions, or exceeds the statutory authority of the agency, or was adopted without compliance with statutory rulemaking procedures. 4

10 The complaint did not give rise to an election contest, but sought rulemaking as a remedy for impacts to the public s right to vote, and Green Party s rights of association. ROA at Ninth Circuit opinions have recognized rulemaking as a remedy where existing rules were insufficient. See Ranchers Cattlemen Action v. U.S. Dept. of Agr., 499 F.3d 1108, 118 (9th Cir. 2007) (where new information cast doubt on agency rules, the remedy was to reopen rulemaking and not to challenge existing rules as arbitrary and capricious); Sky Ad, Inc. v. McClure, 951 F.2d 1146, 1149 (9th Cir. 1991) (tort damages were inappropriate remedy for rulemaking violations). The ICA gravely erred by requiring Appellants to show the result of the election outcome would have differed in order to sustain their rulemaking claims. B. The ICA gravely erred by too narrowly construing the scope of ballot order methods sought by Appellants to be subjected to rulemaking procedures pursuant to HRS 91-3 procedures. The ICA ruled a one-time calculation/ miscalculation of what would be a sufficient number of blank ballots in the first instance, which was exacerbated by general election day errors in the delivery of reserve ballots... used to determine the number of ballots was ad hoc, intended only for the 2012 elections, due to the reapportionment/ redistricting process did not constitute a policy statement or interpretation of the statute [HRS (d)] or a methodology intended to or would ever be use again in the future. ICA Op. at 18. Appellants did not seek to have this amalgam of modified methods, election day errors, and ad-hoc determinations be prescribed as rules pursuant to HRS As set forth in their complaint, Appellants sought a declaration invalidating methods for failure to have been subject to rulemaking processes: (1) the methodology used to determine the number of ballots to be printed in the 2012 federal and state election ; (2) procedures by which a precinct requests additional paper or marksense ballots when the precinct [runs] out of ballots and receives additional blank paper or marksense ballots ; and (3) the procedure used to rectify the situation when a voter votes a ballot that contains some races to which the voter is not entitled to vote. ROA at Ballot ordering, requesting additional ballots, and voting on inappropriate ballots were foreseeable occurrences in the course of elections, rendering rulemaking appropriate. HRS The ICA gravely erred by focusing on Tomcyzk s specific 2012 ballot order methodology, finding it significant that in 2012, Tomcyzk utilized a different formula for the primary and general elections of 2008 and 2010, a formula that was based on a methodology reflected in a document entitled Ballot Order 2002[.] ICA Op. at 17. The ICA concluded this 2012 formula implemented HRS (d) in partial satisfaction of the definition of a rule, but was not of general applicability and future effect. ICA Op. at 17 (citing HRS 91-1(4)). The ICA s characterization of ballot order modification as ad hoc, intended only for the 2012 elections, due to the reapportionment/ redistricting process 5

11 constituted grave error as reapportionment had occurred in 2012 which supplanted the 2002 order created after the 2002 reapportionment, and was a foreseeable circumstance for the Office of Elections. 4 ICA Op. at 18; ROA at 156, 158 (2010 ballot order was substantively similar to the 2002 ballot order and 2008 ballot order utilized the 2002 ballot order method]. After redistricting in 2002, as the ICA acknowledged, the 2002 ballot order had been used as the basis for ordering ballots for elections until 2012, when it was modified. ICA Op. at 17. The 2012 ballot order method, like the 2002 ballot order method, would foreseeably be used in future elections, and this method was the subject of Appellants complaint not the entire 2012 ballot order situation, inclusive of errors. See ROA at Defendants set forth their 2012 ballot order methodology in their response to interrogatories. ROA at Appellants sought to have such a methodology subjected to rulemaking processes, which would include opportunities for public input. HRS 91-3(a). The ICA found inappropriate Appellants colorful[] descri[ption] of Tomcyzk s method as that of a middle-level political appointee deciding the methodology for the number of blank ballots to be ordered in a room by herself. ICA Op. at 16. Yet, Defendants evidence supported such a description of Tomcyk s ballot ordering procedure. By dated November 27, 2012, the Office of Election s contractor forwarded an to Nago stating in relevant part: Ballot Order was due on Aug 1... Lori and I did discuss that she would not meet that due date and that the order would come after the Primary. The last ballot order that I received was the Maui RES order on Oct. 8. During ballot productions for the General we were constantly waiting on Lori to send orders in and Jackie would usually have very little time to turn them around for the file producers without halting production. I do remember an afternoon or two that we sent Isaac and Eric home early because we didn t have anything. ROA at , Vendors then listed seven of some of the issues encountered with the orders. ROA at 192. The ICA s conclusion that the record disclosed no evidence that the faulty 2012 methodologies would be used in the future failed to account for the converse conclusion. ICA Op. at 17. Contrary to the ICA s interpretation, the very arbitrary and capricious character of Tomczyk s ad hoc actions demonstrate they were appropriately within the scope of rulemaking remedies. See HRS 91-7(b) ("[t]he court shall declare the rule invalid if it finds that it violates constitutional or statutory provisions, or exceeds the statutory authority of the agency, or was adopted without compliance with statutory rulemaking procedures ) (quoted in Foytik v. Chandler, 88 Haw. 307, 315, 966 P.2d 619, Insofar as the ICA also considered general election day errors in its characterization of 2012 ballot ordering as a one-time calculation/ miscalculation[,] such errors notably occurred in areas unaffected by natural disasters, (Waialae and Hokulani Elementary Schools are located in Honolulu). ICA Op. at 18. In any case, HAR provided for the postponement of elections in the event of a natural disaster. This rule demonstrated that the impact of natural disasters on elections was foreseeable. 6

12 (1998)). C. Disposition of improper ballots affected the public s rights and procedures and were not exempt from rulemaking as matters of internal management. Disposition of improper ballots implicated the public s rights in voting and voting procedures and were therefore not matters of internal management. C.f. ICA Op at 23. The ICA gravely erred by concluding such procedures were directed exclusively to precinct workers in the execution of their election day responsibilities[,] and the indirect way the public s right to vote was affected by procedures did not require rule-making. ICA Op. at (citing State v. Claunch, 111 Haw. 59, 66, 137 P.3d 373, 380 (App. 2006); Rose v. Oba, 68 Haw. 422, 427, 717 P.2d 1029, 1032 (1986); Doe v. Chang, 58 Haw. 94, 96, 564 P.2d 1271, 1273 (1977); Burdick v. Takushi, 504 U.S. 428, 433 (1992)). First, ballot shortages and provision of the wrong ballots affected the private rights of and procedures available to the public because, as recognized by the circuit court, voting on the wrong ballot meant that those votes would not be counted. ROA at The circuit court found: 27. While certain polling places experienced a shortage of paper ballots in English during the 2012 General Election, voters who went to those polling places, could vote on a minority language ballot or by using an electronic voting machine. [.... ] 45. In counting the votes cast on a wrong ballot, all of the votes cast in races for which the voters in that precinct are entitled to vote are counted and all of the votes cast in races for which voters in that precinct are not entitled to vote are not counted. ROA at 1039 (FOF No. 27), 1041 (FOF No. 45). The corollary to FOF No. 45 is that the public was deprived of the right to vote in elections in which they were entitled to vote. Because ballot shortages may result in the provision of the wrong ballots and the deprivation of the right to vote, such procedures could not qualify for the internal management exception to the definition of a rule. HRS 91-1(4). Second, the conclusion that ballot shortages were matters of the Commission s internal management constituted grave error as Hawaiʻi Election statutes and rules contain detailed provisions for the ways ballots were to be handled. See Part VIII ( Ballots ), IX ( Voting Procedures ), X ( Vote Disposition ) of chapter 11, HRS; subchapters 7 ( Ballot Printing and Delivery ), 8 ( Voting Procedures at Polling Places ), 9 ( Vote Disposition ) of Title 3, chapter 172, HAR. The Office was required to ensure each precinct would receive a sufficient number of ballots. HRS (d) (titled, Printing; quantity of ballots ). Office rules included provisions for ballot delivery, seal certification procedures, delivery, and collection. HAR Various elaborate procedures for the counting 7

13 of ballots were also provided for by rule. See HAR Construing existing rules with ballot shortage calculation methodologies in pari materia indicate the latter would similarly be considered to affect the rights of and procedures available to the public. Richardson v. City & County of Honolulu, 76 Haw. 46, 55, 868 P.2d 1193, 1202 (1994) (quoting HRS 1-16 (1985)). The ICA recently published Makaʻāinana v. Hawaiian Homes Comm'n, No. CAAP (Haw. App. Dec. 22, 2015), which held the Department of Hawaiian Home Lands (DHHL) was required to prescribe rules pursuant to HRS chapter 91 prior to incorporating a declaration of covenants, conditions, and restrictions, into homestead leases. Id., No. CAAP at 12. The general authorization requiring rules concerning the development of housing under the applicable DHHL statute was construed to most naturally and conventionally encompass DHHL s authorization to enter agreements with developers for construction on DHHL lands. Id., at Rules concerning various aspects of ballot provision and handling, in addition to the statutory mandate to provide sufficient ballots under HRS (d), would most naturally and conventionally also encompass ballot shortages. Id. Further relevant, Makaʻāinana rejected plaintiffs desired remedy of selectively enforcing rulemaking requirements concerning the DCCRs, but not other contracts because the agency s failure to comply with its rulemaking obligations appl[ied] to both situations and plaintiffs could not selectively rely on rulemaking requirements. Id., at Likewise, Nago s selective reliance on rulemaking authority under HRS 11-4 to prescribe rules concerning the same subject matter (ballot provision) constituted an abuse of discretion warranting judicial sanction. Id. Third, cited cases either concerned public rights significantly distinct from the fundamental right to vote or were inapposite for other reasons. Claunch adhered to stare decisis and a line of cases concerning police intoxication control roadblock in determining the general order on intoxication control roadblock checkpoints at issue affected only the internal management of the Kaua i police department. Id. 111 Hawaiʻi at 67, 137 P.3d at 381. Key to the Claunch decision was State v. Fedak, 9 Haw. App. 98, 825 P.2d 1068 (1992), in response to which the Legislature enacted Act Haw. Sess. Laws Act 183, 1 & 2 at The purpose of Act 182 was to clarify that, in the case of internal police procedures that do not fall within the definition of "rule" under section 91-1(4). Id. quoted in Claunch, 111 Hawaiʻi at 65-66, 137 P.3d at No such legislative imperative existed with respect to election procedures. Rose concerned Hilo Hospital bylaws adopted to the detriment of a physician-member of the hospital. Cited passages from Rose appropriately described a highly attenuated relationship to affected public rights and bylaws concerning corrective action for hospital physicians. Id., 68 Haw. at 427, 717 P.2d at At most, the public s rights in a choice of hospitals could be affected by the challenged bylaw in Rose. Id. 8

14 Doe plaintiffs defended against welfare fraud claims by challenging Hawaiʻi public welfare fraud investigation manual instructions because they were not validly promulgated. Id., 58 Haw. at 94, 564 P.2d The manual did not command the public to do anything, prohibit the public from doing anything or declare the rights of the public in any respect. It does not make any procedures available to the public. Id. The court found it difficult to hypothesize a stronger example of the internal regulation contemplated by HRS 91-1(4). Id. By contrast, the methods governing ballot provision and procedures in the event of shortages, by definition, make... procedures available to the public. The court s reliance on Burdick was unfortunate and misplaced. In Burdick, a Hawaiʻi voter filed suit to require an upcoming general election to provide for the casting and tallying of write-in votes on the basis of the voters rights of expression and association under the First and Fourteenth amendments of the Hawaiʻi and U.S. Constitutions. Id., 506 U.S. at 430. Appellants, by contrast, did not seek to vote in an absolute manner, but rather sought rulemaking relief because, as the circuit court implicitly found, some voters were provided with improper ballots, those ballots were discarded, and were thereby disallowed from having their votes cast in the proper races. See ROA at (FOF Nos ; Counting Votes on Wrong Ballots ). D. The ICA incorrectly interpreted and gravely erred in applying its interpretation of Pilaʻa to this case. The ICA Op. relied on Pilaʻa 400, LLC v. Board of Land and Natural Resources, 132 Haw. 247, 320 P.3d 912 (2014) for the first two propositions and cited a third holding: (1) a general mandate for rulemaking did not require specific rules under inappropriate circumstances; (2) rulemaking was required in Hawaii Prince Hotel Waikiki Corp. v. City & Cnty. of Honolulu, 89 Haw. 381, 974 P.2d 21 (1999) because the agency "routinely calculated imparted value" and thus "the imparted value methodology was clearly foreseeable[;]" and (3) a single formulaic methodology was impracticable to complex undertakings involving numerous and variable components... unique to a particular situation[.] ICA Op. at 12, 19. First, Pilaʻa was inapposite to the facts at issue in this case because, amongst other things, it took place in the context of a contested case hearing. Second, ballot shortages and ensuing consequences were clearly foreseeable, for reasons discussed infra. Pilaʻa concerned an agency s specific financial assessment against Pilaʻa 400, for unauthorized uses of state lands resulting in damage to the unique and irreplaceable value of Pila a Bay and reef[,] which assessment was levied as part of the agency s order at the close of contested case proceedings. Pilaʻa, 132 Haw. at 257, 267, 320 P.3d at 922, 932. As Pilaʻa recognized, government agencies proceed at times by general rule and at other times by case-by-case adjudication[.] Pilaʻa, 132 Haw. at 265, 320 P.3d at 930 (quoting SEC v. Chenery Corp., 332 U.S. 194, 202 (1947)). Contested case 9

15 hearings are, by definition, case-by-case adjudication of legal rights, duties, or privileges of specific parties. See HRS 91-1(4). BLNR was not required to engage in rule-making because the decision on damages occurred in an adjudicatory setting of a contested case, in which existed procedural safeguards against arbitrary and capricious action. See Title 13, chapter 1, HAR ( Rules for Contested Case Hearings ). Determination of Pilaʻa 400 s damage penalty operate[d] concretely upon them in their individual capacity and the Pilaʻa court appropriately held this constituted adjudication as distinct from rulemaking. See In re Water Use Permit Applications, 94 Haw. 97, 169 P.3d 409, 481 (2000) (citations omitted). Administrative actions affecting public rights and procedures must go through rulemaking or contested case procedures. HRS 91-3, -9. In interpreting the federal Administrative Procedure Act, which has more rigorous requirements for rule-making, the U.S. Supreme Court clarified: Adjudicated cases may and do, of course, serve as vehicles for the formulation of agency policies, which are applied and announced therein.... They generally provide a guide to action that the agency may be expected to take in future case. Subject to the qualified role of stare decisis in the administrative process, they may serve as precedents. But this is far from saying,... that commands, decisions, or policies announced in adjudication are 'rules' in the sense that they must, without more, be obeyed by the affected public. NLRB v. Wyman-Gordon Co., 394 U.S. 759, (1969) (footnote and citations omitted). Fashioning remedies or rules in situations such as Pilaʻa was appropriate to the agencies quasijudicial role, but such rule-making would be inappropriate outside of a contested case hearing context. The Office of Elections did not determine its ballot management methodologies within a contested case proceeding. 1. Complexity of 2012 ballot order methods did not exempt them from rulemaking requirements. The ICA interpreted Pilaʻa as holding rulemaking impracticable where the agency's task was a complex undertaking involving numerous and variable components, often unique to a particular situation[.] ICA Op. at 12 (citation omitted). The Pilaʻa holding was, however, specific to damages to natural resources assessed in a quasi-judicial fact-finding context and was therefore inapplicable. The ICA s incorrect interpretation of Pilaʻa served as a foundation for its review of Appellants illegal rulemaking claims and the ICA gravely erred in relying on the complexity of 2012 ballot management methods to exempt them from rulemaking requirements. ICA Op. at 15. One stated objective of the rule-making provisions of [HRS chapter 91] is (t)o provide for public participation in the rule-making process, by allowing any interested person to petition for a change in the rules as well as to participate in a public hearing. Aguiar v. Hawaii Housing Auth., 55 Haw. 478, 487, 522 P.2d 1255,

16 (1974) (footnote and citation omitted); see also Rose v. Oba, 68 Haw. 422, 427, 717 P.2d 1029, 1032 (1986) (quoting House Stand. Comm. Rep. No. 8, in 1961 House Journal, at 655). The Hawaiʻi Supreme Court held the undoubtedly 'technical' process of determining rent levels in the private sector and within specified federal formulae was subject to HRS 91-3 rulemaking and public participation in that rulemaking process would not be meaningless[.] Aguiar, 55 Haw. at , 522 P.2d at [N]o matter how complex is the data that goes into the rule's formulation[,] an agency must consider the views of interested persons in promulgating a rule under HRS Aguiar, 55 Haw. at , 522 P.2d at 1262 (comparing to Mortensen v. Bd. of Trustees, 52 Haw. 212, 473 P.2d 866 (1970)). In any case, Pilaʻa would not apply to the instant case, where the 2012 ballot order had already been reduced to a formula. ICA Op. at The Office of Elections was experienced in ballot management during elections, in accord with Pilaʻa. Pilaʻa further specified rule-making was inappropriate where an agency lacks experience with a particular problem and in determining damages resulting from past conduct. Pilaʻa, 132 Hawaiʻi at , 320 P.3d at (citations omitted). In accord with Pilaʻa, ballot shortage rules sought by Appellants would not determine damages. Further, the Hawaiʻi Supreme Court stated: reliance on Hawai i Prince is misplaced because assessment of the imparted value of a golf course cannot be compared to a unique resource like Pila a reef. Pilaʻa, 132 Hawaiʻi at 267, 320 P.3d at 932. Rules governing ballot shortages would address a situation comparable to the generic situation of Hawaiʻi Prince as opposed to the party-, event-, and resource- specific address of Pilaʻa. The Office of Elections had experience with ballot management and has already prescribed rules for comparable handling of ballots. See e.g., HAR (Ballot delivery); -73 (Ballot transportation). Defendants relied on Tomczyk s experience in preparing the ballot orders in prior elections in determining how to modify prior ballot order methodologies for the 2012 election. ROA at 152; ICA Op. at 16. Ballot provision and counting methods were based on the Office of Elections experiences in 2008, 2010, and 2012 elections. ROA at (FOF Nos. 8, 10). The broad experience of the Office of Elections concerning ballot management accorded with Pilaʻa parameters for rulemaking. E. Appellants were not required to petition for agency rulemaking in order to raise their HRS 91-7 claims. The ICA gravely erred by finding Appellants fail[ed] to cite to the record showing that the Circuit Court determined that the obligation of the agency... was mitigated or relieved by a failure to apply to the agency to engage in rulemaking procedures pursuant to HRS ICA Op. at 24. At the August 23, 2013 hearing, Defendants argued, without indicating any authority for its position, [Appellants] need to file a petition with the Office of Elections [pursuant to HRS 91-6] before this 11

17 case can be brought into court. Tr. 16, Aug. 23, 2013 at 11. Appellants cited to facts underlying Babson v. Nago, No. CAAP (Sep. 17, 2014) (mem.) (holding Nago was required to conduct rulemaking processes) and the Office's position has been that they don't have to adopt the rules, in response to the circuit court s inquiry into their reasons for not submitting a HRS 91-6 petition. At its July 18, 2014 hearing on parties cross-motions for summary judgment, the circuit court again inquired into Appellants decision not to submit a HRS 91-6 rulemaking petition. Tr. 18, Jul, 18, 2014 at 11. Appellants stated such a procedure appeared futile given Nago s position that Appellants rulemaking petition concerned matters of internal management. Id. at 12. The circuit court persisted that through such rulemaking: [Appellants] could have engaged in self-help... Instead, by taking the position they are, they're basically suggesting to me, well, Judge, the State's position is this. We are not, under any circumstances, going to engage in any self-help in this case. We've been told it's -- by the State it's -- we're not going to do anything, but we don't care.... And I understand what you're saying. But maybe the State might have a change of heart or, alternatively, I might be persuaded at that point that your client's position is stronger rather than where it is at this point. Id. at (emphasis added). The circuit court thereafter granted summary judgment for Defendants in its FOFs/COLs/Order. ROA at Appellants raised the circuit court s inappropriate consideration of HRS 91-6 to the ICA, contrary to the ICA s ruling. ICA Op. at 24; c.f. Opening Brief (OB) 30 at 8-11 (citations to record); (argument). Further, in Babson, the ICA has permitted a holding contrary to the instant case to stand. Babson concerned a Hawaiʻi resident voters challenge to methodologies for the adoption of the federal voluntary voting system guidelines in State and county elections and use of telephone lines or the internet to transmit ballot counts and election results for final tabulation because they had not been adopted pursuant to the requirements of the Hawai i Administrative Procedures Act (HAPA), Hawaii Revised Statutes (HRS) Chapter 91. Id. The circuit court ruled in plaintiffs favor and chief elections officer promulgated such rules. Id. On appeal, the ICA held Babson plaintiffs had standing to bring the case pursuant to HRS 91-7 and declined to conclude exceptions to the mootness doctrine applied so as to disturb the underlying ruling. DATED: Honolulu, Hawai'i January 27, /s/ Lance David Collins LAW OFFICE OF LANCE D COLLINS LANCE D. COLLINS Attorney for Petitioners/Appellants

18 APPENDIX A

19 Electronically Filed Intermediate Court of Appeals CAAP DEC :23 AM

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88 CERTIFICATE OF SERVICE I certify that all parties were either served electronically through the Court's JEFS internet protocol or traditionally, if electronic service is unavailable, by mailing a copy of the same via USPS, first class, postage prepaid. DATED: Honolulu, Hawai'i January 27, 2016 /s/ Lance D. Collins LAW OFFICE OF LANCE D COLLINS LANCE D COLLINS Attorney for Plaintiffs-Appellants